Operating behind closed doors in a north London office block, the Court of
Protection has the power to make life or death decisions on behalf of some
of the most vulnerable people in society.

Until 1947 it was known as the Office of the Master in Lunacy, and would administer the financial affairs of anyone found to be of unsound mind.

In recent decades, while the Court of Protection handled money matters, the High Courts would deal with the moral dilemmas raised by medical treatment of the mentally ill.

In these cases, councils or health bodies were able to ask judges to rule that people in their care with severe learning difficulties should undergo sterilisation or have abortions if they believed it was in their best interests.

The cases were often brought because doctors could face accusations of negligence if they failed to treat a patient who could not give consent, or assault if they acted without permission.

But fraught with ethical problems as they were, these High Court cases were held in public and could be reported by media.

Under the Mental Capacity Act 2005, however, the Court of Protection was given the power to decide on medical treatments for individuals judged by psychiatrists to lack mental capacity.

This move was intended to close a loophole identified in the earlier cases, in that it was unclear if any body or individual had the authority to take healthcare decisions for incapacitated adults.

It was made clear that cases dealt with under the new powers would not be open to scrutiny, departing from the general principle of open justice held by other courts.

The Court of Protection Rules 2007 state: “The general rule is that a hearing is to be held in private.”

Separate documents published by HM Courts Service spell out that the Court of Protection is able to take life-or-death decisions, including withdrawing treatment from anyone in a coma or preventing them from having babies through abortion or sterilisation.

A list of “matters which should be brought to the court” includes: “decisions about the proposed withholding or withdrawal of artificial nutrition and hydration from a person in a permanent vegetative state or a minimally conscious state” and “cases involving non-therapeutic sterilisation of a person who lacks capacity to consent”.

A further list of “serious medical treatment” the Court can decide open includes: “certain terminations of pregnancy in relation to a person who lacks capacity to consent to such a procedure”, “an experimental or innovative treatment for the benefit of a person who lacks capacity to consent to such treatment” and “a case involving an ethical dilemma in an untested area”.

It also gives the Court power to order procedures “where that procedure or treatment must be carried out using a degree of force to restrain the person concerned”.

It was under this provision that Sir Nicholas Wall, the President of the Family Division sitting in the Court of Protection, made a landmark ruling last year that a woman suffering from cancer of the uterus must receive treatment even though she has a phobia of hospitals and needles.

He ruled that doctors should be allowed to sedate the 55 year-old in her own home, using a drug hidden in a glass of Ribena, then detain her in a ward following the essential treatment, because she has a learning difficulty and so was judged to be incapable of deciding on her own “best interests”.

The case was only the second in the Court to be made public. The first, involving the financial affairs of a blind pianist, came after the Lord Chief Justice, Lord Judge, agreed that “the interests of the public and media are legitimately engaged”.

In another case disclosed by The Daily Telegraph last August, Mr Justice Bodey criticised a council for trying to contraception forced upon a woman with a low IQ, warning that the move had “shades of social engineering”.

Away from the disquiet raised by some of its cases, the Court itself has had “more than its fair share of setbacks” according to the Senior Judge who is in charge of it.

Denzil Lush, Senior Judge said the Government had failed to anticipate the volume of work that would “inundate” the tribunal or the “burden” it would place on staff.

He agreed that the Court’s procedures had become “more bureaucratic and time-consuming”, as figures showed that it received more than 1,500 complaints in its first two years, and had only met a sixth of targets.

The first-ever report on the expanded Court showed that between October 2007 and December 2009, it received 39,579 applications on property and finance, most of them to appoint a “deputy” to manage someone’s affairs.

Between January 2008 and December 2009, it received 2,695 applications in “personal welfare” cases.

However it also had 1,672 complaints, “mostly about delays, the timescales involved in the application process or about judicial directions”.

The Court has six official targets, known as Key Performance Indicators, to handle applications, reply to correspondence and make directions within a certain number of weeks.